The International Center for Transitional Justice (ICTJ) is presently facilitating a stimulating online debate titled ‘Is the International Community Abandoning the Fight Against Impunity?’ The UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, argues that the international community is not abandoning the fight against impunity, highlighting successes in national and international courts including the trial of former Chadian dictator Hissene Habré in Senegal and urges for a long term outlook. Professor Michael Ignatieff from Harvard University makes a rather sobering point that the international community has its own self-interests when pursuing justice and accountability and that politics ultimately trumps international justice. A victim centered view is injected by Betty Murungi, former Vice Chair of the Kenyan Truth, Justice and Reconciliation Commission, who suggests that victims should be involved in designing transitional justice programs that speak to their specific concerns. The debate captures the nuances and challenges faced in the search for justice and accountability globally and highlights the growing role played by domestic courts and commissions of inquiry, the last point relevant to Sri Lanka when exploring modalities for truth and justice for past violations. President Maithripala Sirisena’s government has in the past few weeks promised a ‘credible domestic process’ to investigate and inquire into the past and prosecute perpetrators. Two months into the new government, there is no clarity what this domestic process is to entail.

This article briefly makes the case why a domestic process can work in post war Sri Lanka if significant changes are undertaken. The focus on domestic processes does not discount the continuing need for international attention on Sri Lanka but makes the case why there is an opportunity now to explore domestic processes and ensure much needed reform. This includes undertaking wide consultations with different stakeholders when designing a process and identifying areas that require attention, introducing legal and policy reforms and implementing an effective victim and witness protection program. It is also fundamental to rethink structural processes required for such an exercise and introduce a process that is independent, has the required expertise and capacity to deal with serious human rights violations and adheres to international standards.

Present Dynamics in Sri Lanka

At the outset it must be stated that domestic processes can only be effective and address the culture of impunity if there is a genuine political will within the leadership. We have witnessed numerous obstacles that prevented a credible domestic process from being fully implemented in the past including the lack of capacity within key institutions to investigate, indict and prosecute, lack of trust among different groups, the empty promises by successive governments and the inability of the different political stakeholders to agree on steps to genuinely address the grievances of affected communities across Sri Lanka. Efforts now to introduce modalities to address truth and justice in Sri Lanka must address and overcome these issues. A study by the Centre for Policy Alternatives (CPA) provides a long list of commissions established by successive governments, with findings and reports of such commissions not publicly available and lack of information on the status of implementation. The Lessons Learnt and Reconciliation Commission (LLRC) is an exception in terms of the final report being in the public domain but questions remain regarding the status of implementation of its recommendations. Every effort must be taken to prevent such a repeat.

The frustrations with government initiatives are captured by recent protests across Sri Lanka by families searching for missing loved ones and affected communities. Many of the families have continuously engaged with numerous initiatives in the hope of answers but in most cases not even seen the final commission report, let alone received any information regarding the status of their missing family member. Recent protests also made specific reference to the developments at the 28th Session of the United Nations Human Rights Council (UNHRC) and the decision of the Office of the High Commissioner for Human Rights (OHCHR) to defer the tabling of the report by the OHCHR Investigation on Sri Lanka (OISL). The decision to defer the report to the 30th Session of the UNHRC in September 2015 was received with both anger and disappointment by families and affected communities in Sri Lanka, with some making the claim that ‘justice delayed is justice denied’. These grievances are very real and must be addressed.

Is a Domestic Process Viable?

A visiting South African delegation led by Deputy Minister of International Relations and Cooperation of South Africa Nomaindia Mfeketo recently shared their experiences in tackling transitional justice and the establishment of the South African Truth and Reconciliation Commission (SATRC). The team spoke of the process that subsequently lead to the SATRC, the involvement of victims and families in the process, the decision to include amnesties for particular cases in the event of full disclosure and the provision of reparations. They also made the point that any process at truth and justice must be from within Sri Lanka with the involvement of key stakeholders including victims and affected communities.

Engaging with and involving all stakeholders in the planning for a domestic process is critical and there must be wide national consultations to understand the grievances of the different communities. The preparations should not be speeded through for political expediency but conducted in a manner that is inclusive and participatory. It is also vital that Sri Lankans drive the process, with the support, when required, from the international community. Professor Ignatieff articulates this in the ICTJ debate:

We also need to be realistic about what international justice can and cannot be expected to accomplish. Let us admit, for example, that where justice and truth processes have been most successful— Argentina, Chile, South Africa—it has been their national character—citizens of the same country, perpetrators, and victims, facing each other under the gaze of a justice that has national legitimacy—that has produced the most enduring peace and reconciliation afterwards. If reconciliation is ever to make progress in Sri Lanka—and the new government may be edging cautiously in that direction—outsiders can help as facilitators, but the real work will be done by Sri Lankans on both sides who realize, essentially, that their island will never be governable and will never make economic progress until reconciliation—and some national justice for crimes by security forces and insurgents alike—take place.

The question to ask is whether we Sri Lankans are ready and able to address issues of truth and justice. Can we overcome the petty bickering and emotional theatrics by sections of Sri Lankan society and diaspora to realize the grievances of affected communities across Sri Lanka? Can we engage in a genuine dialogue of the past, without being bogged down by opportunists both in Sri Lanka and outside? Can the voices of victims, families and affected communities be given due attention when designing and planning a process for truth and justice? Professor Ignatieff makes the case why political interests can undermine international justice. The same can be said in the search for truth and justice within a domestic setting. We, as Sri Lankans, must use this moment to hold our leaders to account and ensure this opportunity is not lost in realizing lasting peace and reconciliation.

Benchmarks for a Domestic Process

Several steps must be taken during the design stage and in the actual implementation of domestic processes. Experiences from past initiatives provide a glimpse to lessons that should be learnt. The importance of wide consultations has been made. This is essential to ensure ownership of the process and to be inclusive and transparent when moving forward. Wide consultations also provide credibility to a process that is meant to reconcile and to address grievances of communities. It must also be noted that a truth telling process alone is insufficient and there must be attention on accountability processes via special tribunals or trials and also other forms of transitional justice such as reparations and memorialization. It is also timely to revisit work of previous investigations including examining reports of past commissions and committees.

Benchmarks should be identified to strengthen domestic processes. The following list is not exhaustive but provides a starting point in the discussions that must take place in the coming days and weeks:

Clarity in terms of mandate and objective of domestic processes.

Identify the time period under review.

Legal and policy reform including introducing new legislation to introduce independent mechanisms for truth telling, justice and accountability and to ensure the domestic framework in conformity to international standards.

Identifying individuals for a truth telling process who are respected and have expertise in areas of law, governance, human rights, history, psychosocial issues and other relevant areas. Similarly, identifying individuals with the necessary legal and other skills for an accountability process is essential.

Steps should be taken to address issues based on ethnic, religious and gender sensitivities.

Implement an effective victim and witness protection mechanism.

Disseminate information in all languages regarding the different initiatives and how the public can engage with such processes.

Take steps to ensure independence of such processes including setting up an independent fund and employing independent counsel and investigators. In this regard the debates regarding the establishment of an Office of an Independent Prosecutor should be revisited and follow up action taken.

Recruit necessary support staff including competent and experienced translators.

No amnesties should be offered for serious human rights violations including war crimes and crimes against humanity.

Ways Forward

In the weeks and months ahead, there is likely to be numerous debates in terms of what is needed and viable in Sri Lanka. It is unlikely there will be uniform acceptance of any one model. Some sections of society will continue to debate even the need to have a domestic process. Others will dismiss any domestic initiative and continue their calls for international action. The dynamics and challenges are such that these debates are unlikely to be resolved in the immediate future.

Ultimately, Sri Lankans must decide on the most suitable processes in terms of truth and justice in Sri Lanka. President Maithripala Sirisena and his government have a historic opportunity to address the past and decide on ways forward. This is a moment to address failures of past exercises and take steps to ensure there is non-recurrence of violence. A confidence building measure in this regard is to make public reports of all past investigations and inquiries and provide a status update regarding the implementation of recommendations. But it should not stop at this. The Sirisena government should follow through with their promises. And we must hold them to it.

To the writer yet more tender than love, is the art of nurturing ethnic relations in our midst. More so since it has been ravished for long and is being brought back to life after 67 years. In those times never did we seek to be independent. Our dependence was on strife and turmoil to resolve our tussles. What have we gained from them all? This question is posed only as a rhetorical one. Quite a span is needed to place irksome memories in the back burner for them to recede with time. Our vision transfixed on the future and energies canalized for growth and change, can see the beginning of that difference.

Reconciliation at Centre Stage

Wall Street Journal saw Sri Lanka at the ready to take centre stage. Quite perceptively Armitage and others placed Ethnic Reconciliation at the top of the agenda for the nation’s redemption.

At a perfectly timed visit to Sri Lanka, Ms Nisha Biswal met the powers that be of the government. From TNA leadership she “heard their perspective for meaningful progress on Reconciliation” she said. She also “expressed United States’ willingness to work with the new government and looked forward to partnering with the Sri Lankan people”. A welcome initiative for the nation to take the cue from.

President Maithripala Srisena in his Independence Day address placed particular emphasis on the process of Reconciliation. From the way its importance is highlighted by voices from the US and responded to by the highest Executive of the country, one could look forward to accelerated attention in this regard.

A New Axis

In a change of regime, the US and the West foresee other developments to follow. Sri Lanka’s shift towards India is one such. Responsiveness to the stances of Japan is another. With momentum moving in a westerly direction, embracing Europe and US, extending due weightage to India and the Indian Ocean and the leverage of Japan being correctly understood; Sri Lanka is sure to be drawn into the vortex of Washington, New Delhi and Tokyo. This is not to suggest that Sri Lanka will be out of China’s financial benevolence. Time may be all too soon when the island nation benefits from both the worlds.

Some changes are already sensed. Ban on fish imports to Europe may be suspended for six months. To follow is likely to be restoration of GSP plus concession. Loss of momentum on the UNHRC Resolution is casting its shadows. All what they indicate is that if the infant grows up with acceptable behavior it will be molly coddled well and chaperoned with care. Do not fight with your smaller siblings may be the staple coming from outside.

Indo Lanka Rapprochement

The President’s trip to meet Modi in 10 days, signifies great things to come. It comes about after visits by two Foreign Ministers, who presumably did the groundwork. Of no less importance was Sampanthan’s meeting with Modi in New Delhi. The visit of Modi in March will be a portentous one in setting the pace for a protracted and meaningful journey.

The meeting comes as the fifth in a series, preceded by high caliber discussions in recent months. The national question, with all the fallout thereof has gnawed at the membrane of every citizen’s consciousness. But that is not reason enough for the ethnic problem to collapse like a pricked balloon. It is not given to us to cheer like the British when Neville Chamberlain exulted “Peace for our Time” after signing the Munich Agreement in September 1938. Neither Modi nor Maithripala nor Sampanthan can be exuberant with victory scored.

We should be happy that a thorny issue kept aside for long is brought to the front burner for attention. With understanding and goodwill on all sides we may reach the periphery now and the core even swiftly. The polity cannot pitch its sights all too high and then abandon itself to disappointment. The problem by itself is not intractable. Danger lies in unrealistic expectations. Working on the outcome with pragmatism will help take issues to a separate turf and a different level.

Economic Front

As for social stability and harmony, so with ethnic peace and cohesion, erosion of economic disparity is compulsory. Economic and Social Statistics published annually by the Central Bank provide authentic statistics that are edifying.

When the data is related ethnically to Tamils there is a contrast with the Sinhalese. When compared geographically, the North-East suffers badly with most of the remaining Provinces. War doesn’t explain away. Marginalization policies could have been abandoned. Affirmative action in five plus years should have narrowed the contrast. It is not meant to dwell on it any more. It’s most pragmatic to turn the disadvantaged past to a beneficial future.

The New Regime can make January 2015 as a watershed in the nation’s history. Taking the cue from the benevolence showered by nations on Sri Lanka by Tsunami, the government can negotiate for debt moratoria, rescheduling of loans and even for write offs. All these for a credible economic house in order.

Of much greater significance is Direct Investment from foreign quarters. Institutional aid apart are massive amounts flowing in as remittance by expatriates. China and India stand tall in this regard. Sri Lankan Tamils together with Sinhalese and Muslims can show dazzling performance. The condition precedent is that armed marauders, who sojourned for a quarter century and more should be put behind bars. May it be remembered that LLRC has emphasized this necessity.

Good infrastructure built by the previous government was for show purposes. The incumbent regime was voted in to change the culture of waste and to usher in an ethos of investment. Let the people partake of the benefits of investment and employment. Let the powers that be become totally blind to ethnicity and religion.

The Indo-Lanka relationship is multifaceted and offers considerable scope for significant expansion and rapid improvement in the coming years. The commencement of a new political cycle in India provides an opportunity to cast aside mutual suspicions and apprehensions of each other’s motives and work together to lay a firm foundation for closer and mutually beneficial cooperation in many fields, including security, trade, investment, education, health and culture.

The re-setting of Indo-Lanka relations, ex-post the Indian elections would depend on resolving the contentious issues that are currently sources of disharmony. The first of these is post conflict reconciliation in Sri Lanka. This would lay a sound foundation for the development of stable and friendly bilateral ties. It is important that Sri Lanka strengthens and expedites the reconciliation process with political support from all stakeholders, while taking cognizance of its bilateral understandings and commitments. Priority should be attached to expeditious implementation of the 13th Amendment to the Constitution and the recommendations of the Lessons Learnt and Reconciliation Commission (LLRC) related to reconciliation. Action in this direction will create the space for the Indian Government to take a more forthright position in international forums against outside interference in Sri Lanka through intrusive proposals. Above all, it will facilitate the eradication of ethnic distrust, which currently afflicts the country.

The second important issue relates to security. It is in the interest of neither India nor Sri Lanka for external forces to seek to exploit the situation against the interests of either country. Both countries have to take their share of the blame for the tensions that have arisen in the bilateral relations, but the need now is to move on and ensure that there is closer security coordination between them. Each country is vital to the security of the other, and each must take this into account in its foreign policy and national security strategy.
Addressing the above two issues adequately will open the door to wider cooperation in a number of areas. First of all, it will allow deeper engagement in the field of defence cooperation, where Sri Lanka and India are natural partners. Joint exercises, training, and equipment – all these will gain traction going forward.

Similarly, economic engagement will grow deeper and faster. Regional integration between countries like India and Sri Lanka, which have well-recognised complementarities, will be in their mutual economic interest, and also enable them to stand up to international competition more effectively.
These developments will also help for a settlement of the frequent tensions over fishing in the waters of the Palk Bay. Both countries need to work towards adopting a holistic approach to the sustainable management of fisheries and other marine resources through the establishment of a joint mechanism.
Finally, there are strong civilisational links between India and Sri Lanka, and between the Hindu and Buddhist traditions in each country that have not been put to full use in the past in cementing their ties. Not only will this add another welcome dimension to the multi-faceted relations between the two countries; it will also provide mutual support to each other in the face of global currents that could be inimical to their long-term stability.

The time period of the Presidential Commission to inquire into cases of alleged disappearances of persons in the Northern and Eastern Provinces has been amended to cover the period from 1983 to 2009. Previously, the time period consisted of the years from 1990 to 2009.

On a warrant issued under the hand of President Mahinda Rajapaksa, a Gazette notification was issued yesterday (March 25) in accordance with provisions under the Commissions of Inquiry Act.

“We welcome the change of the period of investigation,” said the Secretary of the Commission Mr. H.W. Gunadasa. “During our visits to Jaffna, Kilinochchi and Batticaloa, we received complaints about activities of other organizations. Since our mandate (was) to investigate incidents that occurred during 1990–2009, we could not accept these complaints.”

The three-member Commission, comprising Mr. Maxwell Parakrama Paranagama (Chairman), Mrs. Dimingu Badathuruge Priyanthi Suranjana Vidyaratne and Mrs. Mano Ramanathan, has been given the authority to conduct inquiries and investigations necessary, and submit a report to the President.

In February of this year, President Rajapaksa extended the mandate of the Commission by six months to August 12, 2014.

“We have already received approximately 16,000 complains so far from all parts of the country in response to our public notices in Sinhala, Tamil and English newspapers,” said Commission Chairman Mr. Paranagama. “During our visits, we normally receive 300 to 400 new complaints. There is a good response from the public.”

Sri Lankan President Mahinda Rajapaksa will have much to worry about when the 25th session of the UN Human Rights Council takes up the ‘report of the OHCHR on promoting reconciliation and accountability in Sri Lanka’ on March 26. Despite the fact that the 47-member Council has 14 new members, including some known friends of Sri Lanka, such as China, Cuba, the Russian Federation and Saudi Arabia, the draft resolution submitted by the United States is forceful as it incorporates several new aspects: it includes ‘Human Rights’ in its title, elaborates upon the attacks on minorities, dwells on the importance of transitional justice and reparation policy, and asks the Sri Lankan government to broaden the scope of its national action plan based on its reconciliation commission, the LLRC. Though the draft resolution, ‘Promoting reconciliation and accountability in Sri Lanka’, stops short of using the phrase “international investigation into war crimes” – a fact that has disappointed the Tamil diaspora and pro-LTTE elements in Tamil Nadu – Sri Lanka has no reason to feel let off the hook. The resolution “welcomes the High Commissioner’s recommendations and conclusions on the need for an independent and credible international investigation,” and asks the High Commissioner to “assess the progress toward accountability and reconciliation, to monitor relevant national processes, and to investigate alleged violations and abuses of human rights and related crimes by both parties in Sri Lanka.”

In effect, this gives the High Commissioner many tools to carry out her work. These are new mandates, and move up from the oral update that was given in the last session. And, from “encouraging” Sri Lanka to cooperate with the High Commissioner, the draft resolution steps up the tone and “calls upon” Sri Lanka to do so. Thus boxed in, Mr. Rajapaksa’s meeting with Prime Minister Manmohan Singh in Nay Pyi Taw on the sidelines of the BIMSTEC summit on March 4 gained significance. Dr. Singh, who has steadfastly refused to visit Sri Lanka since the 2008 SAARC summit — while he has met his Pakistani counterpart more often — once again brought up the most critical issue that affects the Tamils of Sri Lanka’s Northern Province: the Army’s brazen occupation of vast areas of civilian land. Dr. Singh asked Mr.Rajapaksa to pare the Army presence in the North. No doubt, the mellow mood in the Sri Lankan ruling establishment comes from the realisation that slowly but steadily the UN Human Rights Council, and, by implication, the international community, is becoming tougher on the issue. In the long run, there is no escape from a credible investigation that establishes accountability. And the question of the political rights of Tamils remains to be addressed with a measure of seriousness and urgency.

The Department of Census and Statistics has issued its interim report on the island wide “Census on Death/ Injuries to Persons and Property Damages Due to Conflict – 2013.”
The interim report contains details of the methodology, training, enumeration and supervision, and the processing of the census data.

The preliminary report based on enumerator summaries will be released within a few weeks.
The Ministry of Public Administration and Home Affairs and the Department of Census and Statistics were assigned with the responsibility of conducting this census as a part of the National Plan of Action for the implementation of recommendations of the Lessons Learnt and Reconciliation Commission.